Nicholas Martin v Julia Kogan

Hearing dates: 12, 13 and 16 November 2020

Approved Judgment

I direct that no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.

Contents

INTRODUCTION

This action concerns a dispute over the authorship of the screenplay of a film called “Florence Foster Jenkins”.

The trial before me was a retrial, ordered by the Court of Appeal on 9 October 2019, as a result of an appeal from the judgment of 22 November 2017 of HHJ Hacon sitting in IPEC, who heard the parties over two days, on 10 and 11 October 2017.

In the Claimant's pleadings, the final version of the screenplay was referred to as “the Screenplay”, but the Defendant defined it to include earlier drafts, and in particular the first three drafts. This reliance on earlier drafts fed into one of the significant issues in the appeal, as the Court of Appeal held that HHJ Hacon erred in looking only at the final version and not taking account of contributions to earlier drafts (and the documents that preceded them). I will refer simply to “ the screenplay” (lower case first letter) to refer to whichever draft I am talking about, as the context will indicate, or to the overall scheme of multiple drafts leading to the final version. Some of the documents use “script” as synonymous with “screenplay”. The issues for this retrial are defined in terms of “the Screenplay”, and that has to be understood in the context I have just explained.

I will refer to Florence Foster Jenkins herself as “ Florence”.

Florence was an American socialite and opera singer. She was a very bad singer, but considered herself to be a very good one. As described below, she sang to large audiences on some occasions and eventually performed in Carnegie Hall.

I will refer to the film itself as “ the Film”. The main events of the Film take place in the 1940s in New York. It was released in 2016 and starred Meryl Streep as Florence. Hugh Grant also starred as the male lead and there were other distinguished members of the cast. The director was Stephen Frears, who was famous and well-established. The film was a success.

Where I refer to “ FFJ” I mean the general overall project of development of the screenplay and making it a commercial reality as the Film, and its various phases. I recognise that this lacks some precision but it is useful when not referring specifically or only to the screenplay, and was an expression used in the contemporaneous documents.

At the invitation of the parties I watched the Film prior to the trial before me (as did the Court of Appeal and HHJ Hacon). I found it useful to do so because it oriented me to the characters, the setting, the plot and the sequence of scenes. I bear in mind however that the Film is not the same as the screenplay, since it brings with it the acting, the sets, the costumes and many other things.

The main protagonists in these proceedings are:

i) The First Claimant (“ Mr Martin”), who, it is common ground, was an author of the screenplay. He contends that he was the only author. Mr Martin is referred to as “ Nick” in many of the documents, and that is how Mr Richards referred to him in the course of cross-examination of the Defendant. The Second Claimant is his company; it will not be necessary to refer to it to any significant degree below.

ii) The Defendant and Part 20 Claimant (“ Ms Kogan”), who claims to be a joint author of the screenplay, which is the central issue. She is also referred to as “ Julia” in the documents.

iii) The Part 20 Defendants (“ the Film Companies”) are companies who optioned the screenplay and then financed and produced the Film.

Mr Martin and Ms Kogan were in a romantic relationship for much of the time when the screenplay was being created. Towards the end of that time they had a temporary break-up, then a reconciliation, and then a final break-up of their personal relationship, following which they remained on reasonable terms and had professional communications and interactions, before finally falling out completely.

In circumstances that I describe below, Ms Kogan was the first to indicate the possibility of litigation by a letter before action in April 2015, but it was Mr Martin who brought proceedings, seeking a declaration that he was the sole author of the screenplay and the sole owner of copyright in it.

Ms Kogan counterclaimed against Mr Martin for a declaration that she was joint author and joint owner of copyright of and in the screenplay, and relief for copyright infringement and infringement of her moral rights by Mr Martin's exploiting it without her consent and without her being given a credit.

Ms Kogan also brought a Part 20 Claim against the Film Companies. They too took the position that Ms Kogan was not a joint author, while saying that their position was provisional because they did not have full information. However, they said that even if she did have a claim, it was barred by estoppel and acquiescence on the basis that she had stood by and watched the production of the Film and, at least indirectly, by silence or through Mr Martin, represented that she had no right to stop their activities.

Basis of and directions for the retrial

The Court of Appeal directed that the case should be remitted on the following basis:

“We will therefore allow the appeal and set aside the judge's declarations and other orders. We will order a new trial before a different judge in the IPEC who should be a full-time circuit or High Court judge. There should be an early case management conference before the new judge. We would not wish to bind the new judge as to the directions he or she will give, but we would express our views as follows:

i) We see no necessity for new pleadings or written evidence.

ii) The new trial should be on the basis that Ms Kogan (a) may rely all on her contributions to the Screenplay, but (b) accepts that her contributions after third draft were limited.

iii) The list of issues to be determined at the new trial should expressly include (a) whether there was a collaboration between the parties, and (b) the nature of that...